APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 788-976, DIVISION
"G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, ALEISHA GASTON Veleka
Eskinde Ann M. Johnson-Griffin
COUNSEL FOR DEFENDANT/APPELLEE, WILLIE EARL HARKLESS, D.D.S.,
D/B/A "SMILES" FAMILY DENTISTRY Donald C. Douglas,
Jr. Robert G. Harvey, Sr.
composed of Judges Jude G. Gravois, Hans J. Liljeberg, and
John J. Molaison, Jr.
G. GRAVOIS JUDGE
Aleisha Gaston, appeals a judgment of the trial court
sustaining an exception of prescription filed by defendants,
Willie Earl Harkless and Willie Earl Harkless, DDS, d/b/a
Smiles Family Dentistry, LLC. For the following reasons, we
affirm the judgment in part, reverse the judgment in part,
and remand the matter to the trial court for further
proceedings consistent with this opinion.
AND PROCEDURAL HISTORY
September 15, 2017, Dr. Harkless provided dental services to
Ms. Gaston. On October 16, 2017, Dr. Harkless and Ms. Gaston
began a sexually intimate relationship. According to Ms.
Gaston, prior to their first sexual encounter, Dr. Harkless
advised her that he did not have any sexually transmitted
diseases ("STDs") and protection was not needed. On
October 17 or 18, the dates of their second and third sexual
encounters, Dr. Harkless gave Ms. Gaston approximately 40
penicillin pills from a supply he kept in his dental office.
He did not give Ms. Gaston a specific reason as to why he was
supplying her with the medicine; nonetheless, Ms. Gaston took
the pills as directed. Because of Dr. Harkless'
insistence that Ms. Gaston take the pills, she scheduled an
appointment with her gynecologist and was subsequently tested
for all STDs. On October 25, 2017, the test results came back
as "abnormal." On that date, Ms. Gaston informed
Dr. Harkless about the test results, and he denied having an
STD (herpes). However, on October 27, 2017, after a second
round of tests, Ms. Gaston tested positive for both Herpes
Simplex Virus 1 and Herpes Simplex Virus 2. When confronted
with the results, Dr. Harkless again denied having herpes.
Subsequently, on or about November 2, 2017, hives began to
appear all over Ms. Gaston's body. Thereafter, she was
diagnosed with a fixed drug reaction to the penicillin given
to her by Dr. Harkless. Dr. Harkless' last sexual
encounter with Ms. Gaston occurred on or about November 22,
October 28, 2018, Ms. Gaston fax-filed a petition for damages
alleging two causes of action: 1) intentional exposure and
transmission of a sexually transmitted disease; and 2)
intentional infliction of emotional distress. In her first
claim, Ms. Gaston argued that she did not have a sexually
transmitted disease prior to her intimate relationship with
Dr. Harkless, and the injuries she sustained were a direct
and proximate cause of Dr. Harkless' actions. In her
second claim, Ms. Gaston argued that the elements of
intentional inflection of emotional distress are evident in
Dr. Harkless lying to her about not needing protection and
thus intentionally infecting her with an STD. Furthermore,
she alleged that the elements of intentional infliction of
emotional distress are evident because sometime after
February 10, 2018, Dr. Harkless had a person on his staff
text an image of him holding a gun to Ms. Gaston in an effort
to intimidate her into not taking legal action against him.
December 17, 2018, defendants filed an exception of
prescription. They argued that Ms. Gaston's claims are
subject to a one-year prescriptive period and are prescribed
on the face of the pleadings. Specifically, regarding the
claim of intentional exposure and transmission of an STD,
defendants argued that prescription began to run on October
16, 2017, when Ms. Gaston and Dr. Harkless began their
sexually intimate relationship, or at the latest, October 25,
2017, when Ms. Gaston received the "abnormal" test
results and discussed the results with Dr. Harkless. Either
date, defendants argued, is more than one year from the date
suit was filed on October 28, 2018. Further, regarding a
claim of improper prescription of medication which caused an
adverse reaction, defendants argued that the medication was
given on October 17 or 18, 2017, well over a year before suit
was filed on October 28, 2018.
February 8, 2019, Ms. Gaston filed a first amending petition
for damages, alleging therein as an additional claim that Dr.
Harkless was negligent in prescribing medication on October
17 or 18 that resulted in a fixed drug reaction on November
2, 2017. As a result of the reaction, she was left
with dark lesions on her body that are both permanent and
highly visible. She claimed that Dr. Harkless' failure to
make any inquiries into her medical history and current
prescriptions caused the fixed drug reaction. She alleged
that the medicine was prescribed in an effort to mask the
symptoms of the STD that Dr. Harkless transmitted to her.
trial court held a hearing on the exception of prescription
on April 1, 2019. Neither Ms. Gaston nor her counsel were
present at the hearing. At the hearing, defense counsel
explained to the court that the hearing on the exception had
originally been set for January 23, 2019, and that he had
agreed to reset the matter after plaintiff and her counsel
did not appear because of alleged service issues. Defense
counsel explained that on March 6, 2019, after the matter was
reset to April 1, 2019, he sent a copy of the signed order
resetting the hearing to April 1, 2019 to Ms. Gaston's
counsel by certified mail. On March 13, 2019, defense counsel
received by fax a copy of a letter from Ms. Gaston's
counsel to the 24th Judicial District Court Clerk
of Court concerning the insufficiency of service of
defendants' exception of prescription. In the letter, Ms.
Gaston's counsel claimed that on March 8, 2019, she
received a copy of the order resetting the hearing on the
exception of prescription for April 1, 2019. She claimed,
however, that she had not been properly served with a copy of
the exception of prescription. At the hearing on April 1,
2019, defense counsel stated that he faxed a copy of the
exception of prescription to Ms. Gaston's counsel on
December 17, 2018, the day he filed the exception with the
the exception of prescription, at the hearing on April 1,
2019, defendants argued that Mr. Gaston's claims are
prescribed on the face of the pleadings, and that everything
pleaded occurred well over a year before the petitions were
filed. No evidence was submitted in support of
defendants' arguments. At the conclusion of the hearing,
the trial court orally granted the exception of prescription.
On April 25, 2019, the trial court signed a written judgment
granting the exception and dismissing all claims against
defendants with prejudice.
April 9, 2019, Ms. Gaston filed a motion for a new trial. In
her motion, she alleged that the exception of prescription
was neither sent by certified mail to her counsel, nor was
service effectuated by the Sheriff. She claimed that service
remains outstanding and the judgment issued must accordingly
a hearing on May 22, 2019, the trial court signed a judgment
on June 24, 2019 denying the motion for a new trial. This
timely appeal followed.
OF ERROR NUMBERS ONE AND THREE
first assignment of error, Ms. Gaston argues that the trial
court erred in finding that she was properly served with the
exception of prescription.Specifically, she argues that the trial
court's finding that service was proper pursuant to La.
C.C.P. art. 1314(A)(4) was wrong. Ms. Gaston argues that the
faxed pleading contained a rule to show cause hearing date,
and pursuant to La. C.C.P. art. 1313(C), the pleading, and
not just the order, must be served by registered or certified
mail. She also argues that when service is made by mail
delivery or electronic means, the party or counsel making the
service shall file a certificate of the manner in which
service was made in the record pursuant to La. C.C.P. art.
1313(B). She claims no such certification was filed by
defendants into the record of this matter. In the
alternative, in her third assignment of error, Ms. Gaston
argues the motion for a new trial should have been granted in
the interest of justice.
argue in response that Ms. Gaston admitted to receiving the
order setting the hearing date by certified mail. She also
admitted to receiving a copy of the exception of
prescription. Thus, they ...